One of the most common ways that foreign nationals obtain U.S. green cards is through an employment-based immigration petition. During this process, a U.S. employer sponsors the foreign national for a green card. The typical employment-based petition is based on a Permanent Labor Certification process, referred to as PERM. If you are an employer thinking about sponsoring your foreign worker for a U.S. green card through PERM, this Q&A provides an overview of your liabilities and responsibilities as a green card sponsor.
To understand the likely costs, you first need to understand the steps involved. The PERM-based road to a U.S. green card is typically a three-step process.
First, you must complete the PERM process. This involves the employer advertising the foreign worker’s position to see whether any U.S. workers are available for the job. If no U.S. workers are available, the employer files the PERM application with the Department of Labor (DOL). When the DOL approves the PERM application, the first step is completed. Per U.S. law found at 20 CFR 656.12, the employer MUST pay ALL of the costs associated with the PERM process. This includes the attorney’s fees and costs of advertising for the position.
Second, once the DOL approves the PERM, you as the employer/sponsor have to file an I-140 visa petition with United States Citizenship and Immigration Services (USCIS). The I-140 gives USCIS information on the foreign worker, your company, and the job opportunity. (For detailed information on preparing and submitting the I-140 petition, please see the articles, The Employer's Visa Petition for a Foreign Worker and Timing an I-140 Petition.) USCIS requires that you submit a filing fee with the I-140 petition. This fee can be paid by either the employer or the employee. The employer is NOT required to pay this filing fee.
Third, once USCIS approves the I-140 petition and the foreign worker’s priority date is current (a visa has become available in his or her category), the foreign worker can complete the final step in the process: filing the green card application (on Form I-485, with related forms and documents). Just like with the I-140, USCIS requires that the foreign worker submit a filing fee with the I-485 application. The employer is NOT required to pay this filing fee.
Per the previous question, U.S. law requires employers to pay all of the costs associated with the PERM process. That same U.S. law also mandates that if the DOL discovers that the employer did not pay these costs (or that the employer sought reimbursement from the foreign worker for these costs) the employer will be investigated by a U.S. government agency, and could face hefty financial fines and other penalties.
If the foreign worker stops working for your company for any reason, you are required to notify the DOL (if you are in the PERM part of the process) or USCIS (if you are at the I-140 or I-485 part of the process) that you no longer employ the worker. If you do not notify the appropriate agency, you may incur a penalty or fine.
Please note that you may incur other liabilities during this process and it is highly recommended that you consult an immigration attorney specializing in employment-based immigration.
As the employer/sponsor, it is your responsibility to ensure that all of the information you provide to USCIS and the DOL is completely accurate and correct to the best of your knowledge. If you accidentally make a mistake on the PERM or I-140 applications, these applications can be denied. If the applications are denied, you do NOT receive a refund for the money you spent on preparing the applications/placing the advertisements, so it is very important that you double and triple check the applications before submitting them. It is very unfortunate when an application is denied for a silly mistake or typo that the employer could have easily corrected prior to submission.
As the employer/sponsor, you are also required to provide accurate and up-to-date information to the DOL and USCIS if you are requested to do so. During the immigration process, both USCIS and the DOL may contact you with requests for additional information in order to supplement or cure any defects with the applications. These requests will also have a very strict deadline. It is your responsibility to provide the requested information within the provided deadline.